Delhi District Court
Mr. Yogeshwar Sharma vs Mr. Ashok Gupta on 4 December, 2012
IN THE COURT OF SHRI AMIT BANSAL, SCJ/RC(WEST)
TIS HAZARI COURTS, DELHI
Suit No. 918/2006
Mr. Yogeshwar Sharma,
s/o Late Sh. L.N. Sharma,
r/o J-134, Sarita Vihar,
New Delhi -110076. .........Plaintiff
Versus
Mr. Ashok Gupta,
S/o Late Sh. Nathu Ram,
r/o D-126, Panchsheel Enclave,
New Delhi-110017. .....Defendant
Date of institution of the Suit : 05.05.2006
Date of reserving Judgment : 29.11.2012
Date of Pronouncement : 04.12.2012
JUDGMENT
1. This judgment shall dispose of the suit for possession under section 6 of The Specific Relief Act as filed by the plaintiff against the defendant.
2. Brief facts as mentioned in the plaint necessary to dispose of this suit are that the plaintiff is a bonafide tenant in the premises S918/06 Page..... 1/19 bearing no. J-132, Sarita Vihar, New Delhi-76 since 1995 and is the owner of J-134, Sarita Vihar, New Delhi-76. Plaintiff averred that he had been in possession of drawing room on the ground floor and the first floor portion of the duplex Flat no. J-132, Sarita Vihar, New Delhi comprising of ground floor, two rooms on the first floor along with bath room cum toilet, balcony and terrace on the first floor. One room on the ground floor along with kitchen and one bath room had been in possession of Ms. Bimal Vohra, landlady. The flat was partitioned in two portion by wooden partition thereby separating the portions of the plaintiff and the land lady Ms. Bimal Vohra. In November 1995, the defendant falsely claiming himself to be owner of the property No. J-132, Sarita Vihar, New Delhi offered to rent out one room on the ground floor drawing room portion at the rate of Rs. 2500/- per month and got an affidavit and indemnity bond executed from plaintiff pretending himself to be the owner of the said property. After about two years Ms. Bimal Vohra approached the plaintiff and asked as to how he was paying for the drawing room and informed him that she was the real owner of the property further mentioning that any payment towards the rent should be made to her only by account payee cheques. Ms. S918/06 Page..... 2/19 Bimal Vohra offered two rooms on the first floor with bath room, balcony and terrace at a enhanced rent of Rs. 6500/- per month which was agreed to by the plaintiff. Plaintiff submitted that Ms. Bimal Vohra had since been collecting the rent at the rate of Rs. 6500/- per month from him for the tenancy of drawing room on ground floor and two rooms on first floor along with bath room, terrace and balcony of J-132, Sarita Vihar, New Delhi. Plaintiff averred that the affidavit and the indemnity bond which were got executed from him by the defendant representing himself to be the owner of the property were null and void. Plaintiff averred that he was the bonafide tenant of the said premises, was in possession of the tenanted premises and has been paying rent since last ten years. The plaintiff was having absolute control over the tenanted premises since 1995 and the plaintiff never provided any key to the defendant. The defendant is facing criminal charges of theft, mischief, house breaking, trespass etc, brought some SC/ST illiterate labour from Punjab, made them lodge false complaints against plaintiff in the SC/ST Commission and also got the plaintiff implicated in a false SC/ST case. The defendant started blocking the common entry steel gate and made it impossible for the plaintiff to use the tenanted premises S918/06 Page..... 3/19 upon which the plaintiff and his wife lodged various complaints at P.S Sarita Vihar whereupon an FIR 508/2005 was registered against the defendant. One co-accused Surjeet Singh was arrested on 20.11.2005 who in his disclosure statement confessed that the defendant along with four other persons had broken into the tenanted premises of the plaintiff. The defendant and his associates also caused extensive damage to the property of the plaintiff. Plaintiff averred that he was in legal possession of one room on the ground floor, two rooms on the first floor along with bath room, balcony and terrace. Plaintiff averred that the defendant mischievously got a false case under SC/ST Act registered against the plaintiff who had to suffer judicial custody from 29.10.05 to 08.11.2005. Plaintiff further averred that taking advantage of the fact that he was in judicial custody, the defendant along with four other persons on 06.11.2005 entered the tenanted premises of the plaintiff, broke the portion and took away goods worth Rs. 2,50,000/- for which FIR no. 508/2005 was registered against the defendant and his associates. Plaintiff averred that the defendant has no right or title or interest in the tenanted premises and that he has been regularly paying the rent of Rs. 6500/- per month to Smt. Bimal Vohra i.e. the original owner of the S918/06 Page..... 4/19 property. Plaintiff averred that on 06.11.2005 when Ms. Sadhna Sharma i.e. his wife found the broken portion on the terrace of J-132, Sarita Vihar, New Delhi from the terrace of her own house No. J-134, Sarita Vihar, New Delhi she reported the matter to the Police wherein FIR No. 508/2005, PS Sarita Vihar, New Delhi was registered on 06.11.2005 against the defendant and his associates. Plaintiff submitted that after his release from judicial custody he gave detailed account of the goods stolen and requested for the repossession of the two rooms and other portions of first floor from which he was dispossessed as shown in the red colour in the site plan but the police asked him to take suitable repossession order from the Court. Plaintiff submitted that since 06.11.2005 the defendant is in illegal and unauthorized possession of the first floor portion of Flat no. J-132, Sarita Vihar, New Delhi comprising of two rooms, bath room cum toilet, balcony and terrace which were in legal and authorized possession of the plaintiff since 1997. Plaintiff thus prayed for a decree of possession in respect of first floor portion of the Flat no J-132, Sarita Vihar, New Delhi comprising of two rooms, bath room cum toilet, balcony and terrace as shown in red colour in the site plan.
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3. Defendant filed the written statement and submitted that the suit of the plaintiff is bad for nonjoinder and misjoinder of the necessary parties as the plaintiff has not impleaded Smt. Bimla Vohra who is co-owner of the property and in physical possession of the suit premises. Defendant further submitted that he neither trespassed in the property nor is in the possession of the suit premises and hence the suit is not maintainable against him. Defendant also submitted that the suit is barred by limitation and that the plaintiff is / was neither tenant nor was in possession of the suit premises i.e. two rooms, bath room cum toilet, balcony and terrace on the first floor of flat bearing no. J-132, Sarita Vihar, New Delhi. The plaintiff was neither in possession nor he was dispossessed by the defendant. Defendant also stated that the plaintiff has not come to the court with clean hands and has suppressed / concealed the material facts from the court. Defendant submitted that plaintiff has filed the present suit as counter blast to the suit for recovery of damages, permanent and mandatory injunction as filed by the defendant herein against the plaintiff. Defendant submitted that plaintiff was only allowed to use one drawing room on the ground floor in the flat temporarily only during day hours as he was residing on the second and S918/06 Page..... 6/19 third floor for which he also executed an undertaking and an affidavit on 15.11.1995 and also executed an indemnity bond on the stamp paper. Defendant submitted that premises was never let out to the plaintiff. Defendant submitted that in the month of November, 1995 the plaintiff approached him to provide drawing room on a ground floor for temporary use only during day hours and the defendant allowed him to use the drawing room situated on the ground floor during 09.00 a.m to 06.00 p.m. without any rent and any other remuneration. The plaintiff also agreed that no tenancy right will be created at any stage. Defendant submitted that plaintiff was not in possession of the first floor portion of the flat consisting of two rooms along with bath room cum toilet, terrace, balcony etc and the premises of the first floor remained in possession of Smt. Bimal Vohra being the co-owner / land lady of the flat. Defendant stated that he has also the title and interest in the property as this property was purchased from the ancient funds of the defendant and his sister Smt. Bimal Vohra and the documents of property stand in name of his sister Smt. Bimal Vohra. Defendant stated that plaintiff is / was never the tenant of any portion of Flat no. J-132, Sarita Vihar, New Delhi and that the entire first portion of the flat is in possession of Smt. S918/06 Page..... 7/19 Bimal Vohra which she never let out to the plaintiff nor handed over the possession of the same to the plaintiff. Defendant denied that there was any wooden partition made in any portion of the said flat by him or Smt. Bimal Vohra. Defendant submitted that he only provided the drawing room on ground floor as co-owner of the property and attorney of Smt. Bimal Vohra and the plaintiff never paid any amount to him in respect of drawing room used by him. The defendant stated that he neither broke any portion nor committed any offence and a false case was got registered against him. He submitted that the plaintiff was not in possession of the first floor of the house and therefore the question of dispossession does not arise. Defendant also stated that he had not committed any criminal trespass and theft.
4. In the replication to the written statement, the plaintiff reiterated the facts as mentioned in the plaint and controverted the facts as mentioned in the written statement of the defendant.
5. From the pleadings of the parties, the following issues were framed in the Suit by ld. Predecessor of this Court on 02.08.2007 :-
1) Whether the suit is bad for non-joinder and misjoinder of necessary parties as alleged in PO no. 2 of the written statement ? OPD.S918/06 Page..... 8/19
2) Whether the suit is barred by limitation as alleged in PO no. 4 of the written statement ? OPD.
3) Whether the suit is not maintainable under Section 6 of The Specific Relief Act as alleged in PO No. 6 of the written statement ? OPD.
4) Whether the plaintiff has not filed the requisite court fees as alleged in PO no. 7 of the written statement ? OPD.
5) Whether this court has no jurisdiction to entertain and try the present suit as alleged in PO no. 8 of the written statement ? OPD.
6) Whether the plaintiff is entitled to the decree of possession as prayed for ? OPP.
7) Relief.
6. The plaintiff stepped into the witness box in support of its case as PW-1 and filed his evidence by way of affidavit which has been proved as Ex PW1/1. In Ex PW1/1 the plaintiff has primarily deposed the facts as mentioned in the plaint.
The plaintiff examined his wife Smt. Sadhna Sharma as PW-2 in support of his case who proved her evidence by way of affidavit as Ex PW2/A. PW-2 deposed to the effect that her husband i.e. Plaintiff is a tenant in the premises no. J-132, Sarita Vihar, New Delhi since 1995 and that he is in possession of the drawing room on the ground floor and S918/06 Page..... 9/19 the first floor portion of duplex flat no. J-132, Sarita Vihar, New Delhi comprising of ground floor, two rooms on first floor along with bath room cum toilet, balcony and terrace on the first floor. She has also primarily deposed on the lines of averments as mentioned in the plaint.
Mr. Hari Ram, Clerk, Canara Bank, Sarita Vihar Branch, New Delhi has been examined as PW-2 ( should have been PW2A and be read accordingly ). PW2A is only a formal witness who deposed that he could not bring the summoned record since the branch was converted into Core Banking Service and that the summons should be issued in the name of Manager, Sarita Vihar, Delhi.
ASI Sumer Singh who has been examined as PW-3 in this case proved the copy of FIR no. 508/2005, PS Sarita Vihar under Section 448/427/380/341/34 IPC as Ex PW3/1.
PW-4 SI Jagat Pal deposed to the effect that on 06.11.2005 he was posted at PS Sarita Vihar and on receipt of DD no. 14A he along with Ct. Karamvir reached at the ground floor of property no. J-132 where he found that one Surjit singh and his wife were residing on the ground floor and the complainant Smt. Sadhna Sharma wife of the plaintiff met him. PW-4 further deposed that he found that the wooden S918/06 Page..... 10/19 partition was broken and the complainant also told him that the locks at the first floor did not belong to her.
PW-5 Sh. Jai Chand, Head Clerk, Central Zone, House Tax, Lajpat Nagar, Delhi brought the summoned record and proved the photocopy of letter dated nil written by Smt. Bimal Vohra to the Collector, Tax recovery MCD, Central Jone, P-Cell, Lajpat Nagar, New Delhi as Ex PW5/A. In cross examination PW-5 deposed that he did not know who filed the letter Ex PW5/A nor could tell the name of the person who gave report at point 'B' on Ex PW5/A in respect of plaintiff being a tenant in the property.
PW-6 Mr. Shahab Akhtar, Officer Canara Bank, Sarita Vihar, New Delhi deposed that the record pertaining to the period from date of opening of the account of M.G. Enterprises could not be produced as the same was not traceable and proved the statement of account of M.G. Enterprises from 02.07.2004 to 21.12.2004 as Ex PW6/A. ACP Rakesh, PCR, Delhi has been examined as PW-6 in this case, however, he should be read as PW6A and be read accordingly. He has proved the report dated 30.06.2006 from FSL as Ex PW6/A S918/06 Page..... 11/19 ( same be read as Ex PW6A/A ).
PW-7 Mr. Ajeet Kumar, Assistant Ahalmad in the Court of Ms. Colette Rashmi Kujur, learned MM-06, produced the summoned record i.e. Judicial file of case FIR no. 508/2005, PS Sarita Vihar. Copy of letter written by ASI Jagat Pal to Director, FSL Laboratory has been proved as Ex PW7/A and copy of the letter written by plaintiff to MCD has been proved as Ex PW7/B. The letter written by FSL to SHO for collecting the report along with copies of the signatures has been proved as Ex PW7/C. Perusal of record shows that the plaintiff also filed two evidence by way of affidavit of Mr. K.K. Thapliyal and Mr. Harbhajan Singh , however, as these witnesses did not tender their evidence by way of affidavit nor faced any cross examination, therefore, their evidence by way of affidavits can not be read in evidence.
7. The defendant examined himself as DW-1 in support of his case and proved his evidence by way of affidavit as Ex DA. The copy of the undertaking and affidavit dated 15.11.1995 executed by plaintiff have been proved as Ex D-1 and D-2. The defendant primarily deposed on the lines of written statement.
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8. I have heard the final arguments and have perused the record including the written final arguments as filed on behalf of plaintiff.
9. My findings with respect to the above said issues as framed in the suit are as under : -
ISSUE No. 1
10. The onus to prove this issue is on the defendant vide which the defendant has to prove that the suit is bad for nonjoinder and misjoinder of necessary party Smt. Bimal Vohra who is the co-owner of the property and in physical possession of the premises in suit. The plaintiff vide the present suit is praying for a decree of possession in respect of first floor portion of the Flat no. J-132, Sarita Vihar, New Delhi comprising of two rooms, bath room cum toilet, balcony and terrace as shown in the red colour in the site plan. The case of the plaintiff is that he is a bonafide tenant on the first floor with bath room, balcony and terrace at the rate of Rs. 6500/- per month since 1997 qua the property in suit which was given to him by the owner of the same i.e. Ms. Bimal Vohra. The case of the plaintiff which is further evident from the plaint is that on 06.11.2005 the defendant along with four other S918/06 Page..... 13/19 persons entered the tenanted premises of the plaintiff, broke the portion and took away goods worth Rs. 2,50,000/-. In paragraph no. 17 of the plaint, the plaintiff has specifically mentioned that defendant has no right or title or interest in the tenanted premises and the plaintiff has been paying regularly the rent of Rs. 6500/- per month regularly to its original owner i.e. Smt. Bimal Vohra. The defendant in the written statement has also taken a stand that Smt. Bimal Vohra is co owner of the property and is in physical possession of the premises in suit. In replication, the plaintiff has submitted that the defendant has forcibly taken the possession of the two rooms, balcony and terrace on the first floor and that Smt. Vimla Vohra who is a NRI was out of India on 06.11.2005. The plaintiff / PW-1 in his evidence by way of affidavit (Ex. PW1/1) has also deposed on the lines of the plaint and PW-2 who is wife of the plaintiff has deposed in her cross examination that Smt. Bimal Vohra is an American citizen and is the owner of the suit property. It thus seems even from the case of the plaintiff that Smt. Bimal Vohra being the owner of the suit property and the person who gave on rent the first floor of said property on rent to the plaintiff is a necessary party to the suit. The plaintiff has not impleaded her despite S918/06 Page..... 14/19 being a necessary party. It is thus evident that the present suit is bad for non-joinder of Smt. Bimal Vohra who is a necessary party to the suit and the suit is liable to be dismissed. Issue no. 1 is thus decided in favour of the defendant.
ISSUE NO. 2
11. The onus to prove this issue is on the defendant vide which he has to prove that suit is barred by limitation. The present suit is under Section 6 of The Specific Relief Act and the time period for filing the present suit is six months from the date of dispossession. It is the case of the plaintiff in the present plaint that he was dispossessed by the defendant along with four other persons from the tenanted premises on 06.11.2005. It is pertinent to note that in the connected suit no. 353/2005 in which the present plaintiff is the defendant, he has taken a specific stand that he was dispossessed on 4-5/11/2005. The present suit as per record was filed on 05.05.2006. It is a a settled law in terms of Section 12(1) of The Limitation Act, 1963 that in computing the period of limitation for any suit the date from which such period is to be reckoned , shall be excluded. It is therefore, evident that if the date of dispossession is taken either as 05.11.2005 or 06.11.2005, the present S918/06 Page..... 15/19 suit which was filed on 05.05.2006 will be within the period of limitation. The issue no. 2 is thus decided against the defendant. It is held that present suit is filed within the limitation period. ISSUE NO. 3
12. The onus to prove this issue is on the defendant vide which the defendant has to prove that suit is not maintainable under Section 6 of The Specific Relief Act, 1963. The case of the plaintiff is that he was inducted as an tenant in the suit property i.e. Flat no. J-132, Sarita Vihar, New Delhi comprising of two rooms, bath room cum toilet, balcony and terrace by Smt. Bimal Vohra and he started paying enhanced rental of Rs. 6500/- per month through cheques. DW-1/defendant has admitted in his cross examination that he did not remember in whose name the account payee cheques of Rs. 6500/- were issued by the plaintiff and also did not remember the total number of the said cheques given by the plaintiff. It shows that the factum of issuing cheques of Rs. 6500/- by the plaintiff to Smt. Bimal Vohra has not been denied by the defendant. The defence to the effect that the cheques were for repayment of the loan as taken in the testimony of defendant is beyond pleadings and no document in this regard has been proved on S918/06 Page..... 16/19 record by the defendant. The onus to prove this issue is on the defendant and the testimony of the witnesses shows that the defendant has failed to prove that the plaintiff was never in possession of the suit property. Plaintiff has also specifically averred that he was dispossessed from suit premises on 06.11.2005. This issue is thus decided against the defendant.
ISSUE NO. 4 AND ISSUE NO. 5
13. Both these issues are inter connected and hence these are being taken up together and will be disposed of by a common order.
The onus to prove both these issues is on the defendant wherein the defendant has to prove that plaintiff has not filed the requisite court fees and this court has no jurisdiction to try the present suit. Both these issues are mixed question of facts and law. It is pertinent to note that neither any evidence on these issues were led by the parties nor these issues were even pressed during the final arguments of the case. In these circumstances, both the issues are decided against the defendant.
ISSUE NO. 6
14. The onus to prove this issue is on the plaintiff, vide which S918/06 Page..... 17/19 the plaintiff has to prove that he is entitled to the decree of possession, as prayed for. The perusal of the prayer clause of the plaint shows that the plaintiff is praying for a decree of possession in respect of first floor portion of the flat no. J-132, Sarita Vihar, New Delhi comprising of two rooms, bath room cum toilet, balcony and terrace. The present suit is a suit for possession under Section 6 of The Specific Relief Act, 1963. In these suits the date of dispossession of the plaintiff is most material. The paragraph no. 16 of the plaint mentions the date of dispossession of the plaintiff as 06.11.2005. As mentioned above, in the connected suit with Suit no. 353/2005 titled as Ashok Kumar Gupta & Another Vs. Yogesh Sharma ( whose final arguments were heard along with the present case being the connected case ), the plaintiff herein, who was defendant in that suit, in the written statement specifically took a stand in paragraph no. 16 of the written statement that he was dispossessed on 4-5/11/2005. It is a material contradiction in the stand taken by the plaintiff herein in both the said cases. It thus shows that the plaintiff is guilty of concealment of material facts from the Court and has not approached the court with clean hands. It is a settled law that a party not coming to the Court with clean hands is not entitled to any relief S918/06 Page..... 18/19 whatsoever from the Court. (Reliance is placed upon the judgment of Hon'ble High Court of Delhi in case titled as Holy Health & Educational Society ( Regd.) Vs. Delhi Development Authority 80(1999) Delhi Law Times 207 ). Further, as discussed above, in terms of the findings on issue no.1 the suit of the plaintiff is also bad for non- joinder of the necessary party Smt. Bimal Vohra, who is stated to be the original owner / land lady of the suit premises. In these circumstances, it is held that the plaintiff has failed to discharge the onus of prove qua issue no.6 and thus this issue is decided against him.
15. ISSUE No. 7.
Relief In view of my above said discussion and findings on issues no 1 and 6, it is held that the plaintiff is not entitled to any relief as claimed in the plaint and the suit of the plaintiff is dismissed, however, with no order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( AMIT BANSAL)
on 04.12.2012 SCJ/RC (WEST)
TIS HAZARI COURTS,
DELHI
04.12.2012
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